Federal Legal Corner: Challenge to Security-Related Report

In Rattigan v. U.S. Dep’t of Justice, 643 F.3d 975 (D.C. Cir. 2011) ("Rattigan I"), Rattigan, an employee of the Federal Bureau of Investigations (FBI), alleged that FBI officials retaliated against him in violation of Title VII of the Civil Rights Act of 1964 when they reported security concerns to the FBI’s Security Division, prompting an investigation into his continued eligibility for a security clearance. The U.S. Court of Appeals for the D.C. Circuit ("Court") held that even though Dep’t of the Navy v. Egan, 484 U.S. 518 (1988), shields the Security Division’s security clearance-related decisions from judicial review, Rattigan’s Title VII claim could go forward if it challenged only the reporting of information to the Security Division and not the Division’s decision to investigate.

The government petitioned for rehearing, arguing that Rattigan I was inconsistent with both Egan and Executive Order 12,968, which states that employees with access to classified information "are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security." Rattigan v. U.S. Dep’t of Justice, 2012 WL 2764347, at *2 (July 10, 2012) ("Rattigan II"). The court granted the petition and articulated a new standard for determining whether decisions to report information to the FBI’s Security Division are judicially reviewable.

In Rattigan II, the majority of the court justified its holding in Rattigan I by explaining that, in Egan, the Supreme Court had reasoned that "the decision to grant or deny security clearance requires ‘predictive judgment’ that ‘must be made by those with the necessary expertise in protecting classified information.’" Thus, the court reasoned, "[i]t is this expert, predictive judgment made by ‘appropriately trained’ personnel that Egan insulated from judicial review, and since FBI employees who work outside the Security Division "have neither the authority nor the training to make security clearance decisions," Egan’s bar did not extend to their decisions to report information to the Security Division.

In its petition for rehearing, the government put forth two arguments. First, it argued that decisions to report security concerns come within Egan’s scope because they involve the same type of predictions about risks to national security as the decision to grant or deny clearances and because the reporting mandate of Executive Order 12,968 reflects a "categorical determination that all employees with access to classified information have the necessary training and experience to report security concerns." The court rejected this argument on the ground that "employees outside the Security Division are expected to refrain from making sensitive, predictive judgments and it is not their place to make the kinds of decisions that Egan shields from review." Id. (citing the government’s brief). Thus, the court concluded that decisions to report security concerns to the Security Division do not come within Egan’s scope.

Second, the government argued that preserving Title VII liability for security reporting claims will chill the adequate reporting of security issues and will, thus, impair the ability of the Security Division to fulfill the Executive Order. Specifically, the government argued that the Executive Order established a broad reporting standard because employees were expected to report any information, even if it is mere rumor, and, thus, Rattigan I was inconsistent with the Order because it would allow a jury to find pretext—and Title VII liability—from an employee’s decision to report dubious or potentially irrelevant information. Further, the government argued that Rattigan I would also allow the jury to evaluate the plaintiff’s pretext evidence under the preponderance of the evidence standard, which Egan deemed inconsistent with the "clearly consistent with the interests of the national security" standard used in security clearance determinations. Last, the government argued that employees would be deterred from reporting information that raises doubts or that employees may decide to investigate the allegations themselves before reporting, which may hinder the Security Division’s ability to conduct an effective investigation.

The court agreed with the government that Rattigan I may have a chilling effect on the reporting of information to the Security Division, thus compromising the integrity of its decisions, but it refused to hold that the government was absolutely immune from Title VII liability. Instead, the court limited judicial review to Title VII claims based on knowingly false reporting since the Security Division "cannot be assisted by employees who knowingly report false information . . . about fellow employees." The court reasoned that this standard would require from the jury only a determination of whether the reporting employee knew that the information he provided was false, and this determination could be made under the preponderance of the evidence standard without interfering with the determination of whether the plaintiff’s continued access to classified information was clearly consistent to national security.

The government objected to limited Title VII liability on two grounds: (1) the new standard would still have a chilling effect on the reporting of information because employees would be fearful that a jury could find that the employee knew the information to be false, and (2) employees’ reports to the Security Division are already subject to independent review by the agency. The court rejected the government’s arguments on the ground that the chilling effect created by imposing Title VII liability is negligible in comparison to the chilling effect created by the agency’s own investigation and the determination of whether an employee knew the information to be false is a question for the jury. The court also noted that its new rule was also consistent with Congress’ purpose in enacting Title VII.

The court remanded the case because Rattigan had not had an opportunity to thoroughly develop evidence of knowing falsity in the district court, and the record contained some evidence that could form the basis for such a claim.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.